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Are Children’s Choices Taken Into Account by the Courts During a Divorce?

Divorce proceedings can be stressful, particularly when there are children involved. The matter of custody is often the most contentious, as both parents want a say in the upbringing and welfare of their children. In an ideal situation, parents come to a custody arrangement out of court, with the help of a mediator and their respective attorneys. In fact, some judges require mediation before setting a custody hearing.

In contentious divorces, custody issues can’t always be resolved through mediation. In this case, parents turn to a court-ordered custody arrangement. Judges look at a number of factors when determining the custody of a child, but at the center of that is the child’s best interest. A judge isn’t concerned with what the parents want, their only consideration is what will help the child flourish emotionally and cause minimal disruption in their lives. For this reason, a judge may or may not allow a child to have a say in their own custody arrangement.

Can a Child Choose His or Her Custody Arrangement?

Children can’t choose where they want to live per se, but a judge may ask them to testify or at least weigh the child’s preference when making a child custody decision. In fact, this is a legal requirement in most states. In Colorado, a judge looks at a child’s preferences in relation to a host of other factors, including:

  • The parent’s wishes for time
  • The child’s relationship with each parent
  • A child’s connection to their home, school, or community
  • The mental and physical health of each parent
  • The parent’s history of involvement

The law in Colorado presumes that a child is best off in joint custody, where both parents have a legal say and involvement in the child’s life.

When Does a Child Have a Say?

According to Colorado law, the courts are required to consider a child’s references when they are “sufficiently mature to express a reasoned and independent preference.” This terminology itself is subjective, and there is no specific age at which a child can have a say. Instead, a judge must decide if a child can make a reasoned argument for one parent or the other. They must also decide how much weight to give the child’s opinion. For example, a teenager might just want to stay with one parent because they’re more lenient – the courts would give this preference little weight. If, on the other hand, a teen wanted to stay with one parent because they have a more loving relationship, this would carry more weight.

Judges must also take care to ensure parents aren’t trying to influence a child’s decision. In this case, they may ask neutral third parties, such as counselors or mental health professionals, to testify about whether or not a child is trying to express a true preference, or appease an influential parent.

Does a Child Testify in Colorado?

In the state of Colorado, a judge generally does not require a child to testify about their custody arrangement preferences. Instead, a judge will invite the child into their chambers and ask them their preferences, away from the parents (although the parent’s attorneys may be present). Generally speaking, judges will do everything they can to avoid embarrassment, conflict, or making the child feel like they’re being put on the spot.

Judges get to decide what questions to ask the child in the interview, and a court reporter records the answers for the official record. Most parties find this arrangement preferable to official testimony.

Your child’s preferences will carry weight in a divorce proceeding, if they are mature enough to make a reasonable argument that has merit. Overall, the courts are focused on doing what is best for your child – physically, mentally, and emotionally.

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